Legalizing Gay: The Judges

To celebrate Pride 2012 and to honor the great civil rights and political successes we have earned recently, I would like to offer a series of columns on the lawyers, advocates, scholars, and individual leaders who have sacrificed so much, developed novel legal arguments, and won the legal victories upon which we stand today. It is impossible to include everyone; an entire life's work would fail to honor all of our forefathers. But these few representatives symbolize the contributions of the greater whole: a group of men and women, young and old, who have sacrificed so that we can live a life of freedom today. In today's column, the judges.

Fair and scholarly judges cross racial, ethnic, party, religious, and socioeconomic lines; no one has a monopoly on the ability to interpret the law and issue a just decision. And although it is only natural that almost every progressive federal court decision advancing the cause of gay rights has come from a straight judge, our community's quest for honor, dignity, and equality is aided by the integration of openly gay judges on the federal bench. It is not that gay judges will make progay decisions; rather, brilliant legal minds who happen to be gay help demystify "gayness" for other judges and legitimize gay contributions to American society.

Recently, openly gay lawyers Michael Fitzgerald (top, right), Paul Oetken, (right) and Alison Nathan (top, left) won Senate confirmation to district court benches in California and New York. All three judges are incomparably smart and eminently deserving of their elevation, and conservatives and liberals in legal circles expect them to be unassailable, fair, and honorable judges. Their path was made possible by more senior judges, the Honorable Deborah Batts -- an African-American lesbian -- and the recently-retired Judge Vaughn Walker -- the gay man at the helm of the Perry v. Brown trial. Judges Batts and Walker came out after they were confirmed to the bench, but without that progress, confirming openly gay judges would never have been possible.

The Honorable Deborah Batts (left) is a Senior Judge on the Southern District of New York. She was nominated to the court by President Clinton in January 1994, was confirmed about five months later, and has served with distinction ever since. Judge Batts has presided over some high profile cases, including a trial involving the 1998 American embassy bombings, a civil suit against former EPA Administrator (and New Jersey Governor) Christine Todd Whitman, and quite a few groundbreaking intellectual property suits.

The Honorable Vaughn Walker recently retired from the federal bench after deciding that California's ban on marriage recognition for gays is unconstitutional. It was the culmination of a diverse and widely respected legal and judicial career that saw his nomination stalled before President George H.W. Bush succeeded in getting him confirmed. He decided countless cases in a variety of areas, but he will forever be remembered as "the Prop 8 judge," the federal judge who began a steady march toward an eventual marriage recognition victory.

Indeed, the careers of Judges Batts and Walker are important for their substantive contributions to law. But, their legacies are so much more than that. They restore our faith in the neutrality and intellectual honesty of judges and lawyers at a time when courts are highly politicized and conservatives and liberals are wont to yell angry invectives at a judiciary that makes decisions with which they disagree.

Judge Walker's career is a particularly good case study in judicial independence. He was first nominated by President Reagan and was supported by leading conservatives like Ed Meese and the late-Senator Strom Thurmond. But his nomination was opposed by prominent California Democrats like Nancy Pelosi,powerful progressives like the late-Senator Ted Kennedy, and the Human Rights Campaign. They argued that Judge Walker was too conservative and "hostile" and "insensitive" toward gays and the poor because he represented the National Rifle Association, chemical companies, and the United States Olympic Committee in a trademark lawsuit against a gay organization that blocked the use of the term “Gay Olympics.” Mary Dunlap, the San Francisco lawyer who opposed Walker in the "Gay Olympics" case, said that Walker's "lack of compassion and inhumanity and coerciveness certainly disqualify him from consideration for the federal judiciary."

This supposedly antigay judge, the subject of a discriminatory motion from Prop 8 supporters that challenged his ability to be unbiased simply because of his sexual orientation, not only turned out to be gay but also ended up offering a groundbreaking decision on marriage. His subsequent career could best be described as fair, with a libertarian and quirky street. In 2003, Walker required a man who had pled guilty to mail theft to stand in front of a San Francisco post office wearing a sandwich board that read: "I stole mail. This is my punishment." He denied slave-labor reparations requests for descendants of POWs used by Japanese companies in World War II and has called for drug legalization. He has spent his entire career interpreting the Constitution honestly and consistently, never wavering in the face of public pressure.

And lawyers who appeared before him called him a "tough, but scholarly judge." Judge Walker "knows the law and he doesn't suffer fools," and "at the end of the day, you know he cares about the law, the parties, and you." Many practitioners "love[d] appearing in his courtroom." His presence on the bench will be missed.

With Judge Walker's retirement and Judges Fitzgerald's, Oetken's, and Nathan's confirmations, the federal judiciary will have four openly gay judges, three of whom were out when they were nominated. Four is too few, but it is a step in the right direction, a step only made possible by Judges Batts and Walker. The senior judges served with distinction, proved that there is nothing inconsistent with being gay and a great judge, and showed the political and legal worlds that gays are contributing and leading at the highest levels. They were role models and trailblazers not just for young lawyers, but for anyone who wants to see honest and apolitical interpretations of the Constitution.

***

Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues.

Comments

"This supposedly antigay judge, the subject of a discriminatory motion from Prop 8 supporters that challenged his ability to be unbiased simply because of his sexual orientation, not only turned out to be gay but also ended up offering a groundbreaking decision on marriage."

I can't know Walker's mind (lawyers claim to represent their clients after all) and don't have access to the Olympic case he presented. But it was plainly wrong to claim that the common word "olympic" could somehow be owned, by anyone, and as with marriage, the key difference between permitted and banned use of the word was quite clearly antigay hatred.

It's interesting that Walker was described as a Roy Cohn, at that time. Perhaps his secret was out even then.

Bigots, who are often members of the target group themselves, sometimes evolve into fair-minded people, when given the confidence to do so, and I suspect that is what happened here. A lawyer is certainly in a weaker position than a soon-to-be-retired chief judge.

Or could it be that rather than following the facts and the law, judge Walker merely followed public political opinion's changes from the 1980s to the 2000s.

When the Olympics case was decided, gay people were widely despised. In 2008, nearly half of California's voters voted FOR same-sex marriage. But nothing about the inherent facts of our existence or the law has changed since then. We had all the rights then that we have today. It is only the convenience of having courts like Walker's finally decide to recognize and vocalize those rights that has changed.

Posted by: Randy | Jun 27, 2012 3:05:32 PM

I know I always make the same comment, but thank you for writing this series. I always learn so much from your columns.

Posted by: dazzer | Jun 27, 2012 3:17:52 PM

CORRECTION: Judge Batts was out WHEN she was appointed by President Clinton in 1994, according to the "American Bar Association Journal," December 1994.